to be growing, under the fostering care of the AntiVaccination League; and the writer has received from its secretary a number of pamphlets and other communications, which were intended to demonstrate the inequity of vaccination in general and of compulsory vaccination in particular. In accordance with the principles set forth in the text in the present section, there could be no more outrageous violation of personal security, which is guaranteed by all American constitutions, than the compulsory vaccination of an unwilling victim, if it could be proved that vaccination was not only futile as a protection against the loathsome disease of small-pox, but positively injurious to the health of the subject. The proof of the futility of vaccination would alone take away all constitutional justification of compulsory vaccination. But the opponents of vaccination are confronted with the testimony in its favor of the most prominent physicians of the world, who unhesitatingly pronounce the treatment to be efficacious in reducing the dangers of contagion and the mortality from small-pox; while they declare it to be in no way injurious to the health of the subject.

In the face of such an array of expert testimony, it is not surprising that the courts have uniformly sustained the constitutionality of laws, which make vaccination compulsory. This expert testimony may be erroneous, as expert testimony often is; but its unreliability must be proven to the courts, in order to successfully resist the enforcement of vaccination laws.

For the same reason, viz.: the preservation of the health and life of others, where medical attendance and surgical operations are necessary to procure the successful delivery of a child, the consent of the woman is not necessary. The saving of her life and the life of the child is

when it is authorized by statute. Lawbaugh v. Board of Education, 66 Ill. App. 159.

a sufficient justification for this invasion of the right of personal security. But where the neglect of medical treatment will not cause any injury to others, it is very questionable if any case can be suggested in which the employment of force, in compelling a subjection to medical treatment of one who refused to submit, could be justified, unless it be upon the very uncertain and indefinite ground that the State suffers a loss in the ailment of each inhabitant, which may be guarded against or cured by the proper medical treatment.

§ 18. Security to health-Legalized nuisance. — The security against all causes of injury to health and bodily comfort is also highly essential to human happiness, and those acts of individuals which produce injury to health, or seriously interfere with bodily comfort, are called nuisances and are, as a general rule, prohibited. But it is not every annoyance to health and comfort, which constitutes a nuisance.1 Where the annoyance proceeds from some natural cause, and is not the consequence of an act of some individual, it is no nuisance, if the public or private owner should fail to remove the cause of annoyance. Thus, it is not actionable, if the owner of swamp lands fails to drain his lands, and in consequence the neighbors are made sick by the injurious exhalations. Nor is it any ground for an action against a municipal corporation, that it has failed to provide proper remedies for the prevention of nuisances and other annoyances to health and bodily comfort. And

1 See post, § 145, for a more thorough discussion of nuisances.

2 See post, § 154, in respect to the power of the State to compel the owner of land to remove natural causes of annoyance.

* Reeves v. Treasurer, 8 Ohio St. 333.

• Roberts v. Chicago, 26 Ill. 249. See Wilson v. New York, 1 Denio, 595; Mills v. Brooklyn, 32 N. Y. 489; Carr v. Northern Liberties, 35 Pa. St. 824; Detroit v. Michigan, 34 Mich. 125; Delphi v. Evans, 36 Ind. 90; Cotes v. Davenport, 9 Iowa, 227; Lamber v. St. Louis, 15 Mo. 610; White v. Yazoo, 27 Miss. 357.

although, as a general proposition, no one has a right to do any act which will cause injury to the health or disturb seriously the bodily comfort or mental quietude of another, yet this right of security to health and comfort cannot be left absolute in a state of organized society. It must give way to the reasonable demands of trade, commerce, and the other vital interests of society. While the State cannot take away absolutely the private rights of individuals by the legalization of nuisance, yet in most cases of nuisances, affecting the personal health and comfort, there is involved the consideration of what constitutes a reasonable use of one's property, and that is a question of fact, the answer to which varies according to the circumstances of each case. One is expected to submit to a reasonable amount of discomfort for the convenience or benefit of his neighbor. If a discomfort were wantonly caused from malice or wickedness, a slight degree of inconvenience might be sufficient to render it actionable; but if it were to result from pursuing a useful employment in a way which but for the discomfort to others would be reasonable and lawful, it is perceived that the position of both parties must be regarded, and that what would have been found wholly unreasonable before may appear to be clearly justified by the circumstances. Instead of being a question of personal health and comfort on the one hand, and a profitable use of property on the other hand, the question is, on whom in equity should the loss fall, where two adjoining or contiguous land proprietors find their interests clashing in the attempted use of the land by one for a purpose or trade, which causes personal discomfort to the other, who is residing upon his land. The injury to the personal comfort and health is not in such a case an absolute one. For, as was said by the court in one of the

1 See Cooley on Torts, 616.

2 Cooley on Torts, 596.

leading cases, the people who live in such a city, i. e., where the principal industry consists of manufactures, or within its sphere of influence, do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts for the greater benefits they think they derive from their residence or business there." If a noisome or unhealthy trade is plied in a part of a city, which is given up principally to residences, it might be considered a nuisance, while the same trade might, in a less populous neighborhood, or in one which is devoted to trade and manufacturing, be considered altogether permissible."

SECTION 19. Security to reputation - Privileged communications. 20. Privilege of legislators.

21. Privilege in judicial proceedings.

22. Criticism of officers and candidates for office.

§ 19. Security to reputation - Privileged communications.3 — A man's reputation, the opinion entertained of him by his neighbors, is another valuable possession, and the

1 Huckenstein's Appeal, 70 Pa. St. 102 (10 Am. Rep. 669).

2 St. Helen's Smelting Co. v. Tipling, 11 H. L. Cas. 642; Whitney v. Bartholomew, 21 Conn. 213; McKeon v. Lee, 51 N. Y. 300 (10 Am. Rep. 659); Huckenstein's Appeal, 70 Pa. St. 102 (10 Am. Rep. 669); Gilbert v. Showerman, 23 Mich. 448; Kirkman v. Handy, 11 Humph. 406; Cooley on Torts, 596-605; 1 Dillon's Municipal Corp., § 374, note. "If one lives in a city he must expect to suffer the dirt, smoke, noisome odors, noise and confusion incident to city life. As Lord Justice James beautifully said in Salvin v. North Brancepeth Coal Co., L. M. 9 Ch. Ap. 705, if some picturesque haven opens its arms to invite the commerce of the world, it is not for this court to forbid the embrace, although the fruit of it should be the sights and sounds and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitude.'" Earl, J., in Campbell v. Seaman, 63 N. Y. 568.

3 In this and succeeding sections, which relate to security to reputatation, the law has remained unchanged, and, as the inclusion of this subject in the present volume may be considered as a reduction of it to an academic question, I have not attempted to collect the later cases which have involved these questions.

security to which is most jealously, but, it must be confessed in most cases, ineffectually guarded against infractions. The breath of suspicion, engendered by a slanderous lie, will tarnish a fair name, long after the injurious statement has been proved to be an unfounded falsehood. But the aim of all legislation on the subject is to provide the proper protection against slander and libel, and failure in ordinary cases is caused by the poverty of the means of penal judicature, and does not arise from any public indifference. But dear to man as is the security to reputation, there are cases in which it must yield to the higher demands of public necessity and general welfare. Malice is generally inferred from a false and injurious statement or publication, and the slanderer and libeler are punished accordingly. But there are special cases, in which for reasons of public policy, or on account of the rebuttal of the presumption of malice by the co-existence of a duty to speak or an active interest in the subject, the speaker or writer is held to be "privileged," that is, relieved from liability for the damage which has been inflicted by his false charges. These privileged communications are divided into two classes: first, those which are made in a public or official capacity, and which for reasons of public policy are not permitted to be the subject of a judicial action; and secondly, all those cases in which the circumstances rebut the presumption of malice. In these cases of the second class, the privilege is only partial. As already stated, the circumstances are held to rebut the presumption of malice, and throws upon the plaintiff the burden of proving affirmatively that the defendant was actuated by malice in making the false statement which has injured the plaintiff's reputation. In these cases the proof of express malice revives the liability of the alleged slanderer.1 As Mr. Cooley says,

1 "It properly signifies this and nothing more; that the excepted instances shall so far change the ordinary rule with respect to slanderous or libelous matter as to remove the regular and usual presumption of